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Joshua Omotunde v. Mrs. Yetunde Omotunde (2000) – CA

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➥ CASE SUMMARY OF:
Joshua Omotunde v. Mrs. Yetunde Omotunde (2000) – CA

by Branham Chima (SAL).

➥ COURT:
Court of Appeal – CA/I/M.57/2000

➥ JUDGEMENT DELIVERED ON:
Thursday, the 14th day of December, 2000

➥ AREA(S) OF LAW
Domicile
Divorce petition

➥ PRINCIPLES OF LAW
⦿ COURT HAS JURISDICTION TO DETERMINE IF IT HAS JURISDICTION
Before a court finally determines a case pending, it is seised with jurisdiction to determine whether or not it has jurisdiction, but once the court has declined jurisdiction it is functus officio – such a decision can only be referred to an appellate court. — O.O. Adekeye, JCA.

⦿ CIRCUMSTANCES WHERE COURT MAY SET ASIDE ITS OWN JUDGEMENT
Circumstances in which a court may invoke its inherent power to set aside its judgment or order are:- (1) To correct any clerical error or mistakes arising from accidental slip or omission or to vary the judgment or order so as to give effect to its meaning or intention under the Rules of Court Order 5 rule 3 Court of Appeal Rules, 1981. (2) Until a court pronounces a judgment on merit or by consent of the parties a court retains the power to set aside its default judgment obtained in the absence of one of the parties or default of pleadings – The power to do so is however discretionary and has to be exercised judiciously. Mohammed v. Husseini (1998) 14 NWLR (Pt.584) 130; paragraphs D-E. Williams v. Hope Rising Voluntary Funds Society (1982) 1-2 SC 145; (3) Where a judgment has been obtained as a result of fraud practiced by one of the parties Ojiaka v. Ogueze(1962) 1 SCNLR 112, (1962) 1 All NLR 58; Ekerete v. Eke (1925) 6 NLR 118; Craig v. Kanseen (1943) K.B. 256; Agunbiade v. Okunoga (1961) 1 All NLR 110. (4) Where a judgment is a nullity, due to a fundamental defect which goes to the issue of jurisdiction and competence of the court. J. A. Folorunso v. Shaloub (1994) 3 NWLR (Pt.333) 413 at 422, paragraphs G-H; Skenconsult (Nig.) Ltd. Ukey (1981) 1 SC 6. — O.O. Adekeye, JCA.

⦿ ADMITTED NEED NO FURTHER PROOF
As in law what is admitted need no further proof Kamalu v. Umunna (1997) 5 NWLR (Pt.505) 321 at 326. — O.O. Adekeye, JCA.

⦿ ORDER NISI & DOMICILE
The court cannot grant an order nisi without resolving the issue of Domicile. — O.O. Adekeye, JCA.

⦿ PLEADING IS THE LIFE WIRE OF PROCEEDING IN ADVERSARIAL SYSTEM
Pleading is the life wire of the proceeding in our adversorial system of civil jurisprudence – the main function of which is to focus with much certainty as far as possible the various matters actually in dispute amongst the parties and those in which there is agreement between the parties by avoiding element of surprise being sprung on the opposite party.  George v. U.B.A. Ltd. (1972) 8-9 SC 264; Oduka v. Kasumu (1968) NMLR 28; George v. Dominion Flour Mills Ltd. (1963) 1 SCNLR 117. — O.O. Adekeye, JCA.

⦿ DOMICILE IS THE BASIS OF JURISDICTION IN MATRIMONIAL CAUSES
The basis of jurisdiction in matrimonial causes under the Matrimonial Causes Act, 1970, is domicile. It is the domicile of a person that confers jurisdiction on the court to entertain his or her petition for dissolution of marriage. Where the domicile of a petitioner is not established the court will lack jurisdiction to decree a dissolution of marriage. — O.O. Adekeye, JCA.

⦿ DEFINITION OF DOMICILE
Black’s Law Dictionary Seventh Edition simply defines Domicile as the place at which a person is physically present and that the person regards as home, a person’s true, fixed, principal, and permanent home to which that person intends to return and remain even though currently residing elsewhere – same is also termed permanent abode. Every person has a domicile at all times, and no one has more than one domicile at once. Black’s Law Dictionary Seventh Edition defines a Residence as – (1) the act of fact of living in a given place for sometime a year’s residence. (2) The place where one actually lives as distinguished from a domicile. Whereas Residence usually just means bodily presence as an inhabitant in a given place, domicile usually requires bodily presence plus an intention to make the place one’s home. A person thus may have more than one residence at a time but only one domicile. Though the term domicile and residence are used synonymously. (3) The place where a corporation or other enterprise does business or is registered to do business. (4) A house or fixed abode. — O.O. Adekeye, JCA.

⦿ DOMICILE OF ORIGIN
Domicile of Origin. This is the first type of Domicile everybody acquires. It is the domicile of a person at birth derived from the custodial parents or imposed by law. Everybody at birth becomes a member of both a political and of a civil society, the former determines his political status or nationality, and the latter determines his civil status. The law which governs the civil society into which he is born the law of his country of domicile, is attached to his person and remains so attached wherever he goes, unless and untill he ceases to be a member of that society and he can only cease to be a member of that society by becoming a member of another civil society and so acquires a new domicile referred to as domicile of choice – the law of which becomes attached to him in that manner. A domicile of origin is retained until a fresh one is acquired. It is never destroyed, but remains in abeyance where a new domicile is chosen, and revives and comes again into operation when the new domicile is abandoned and then endures until a new domicile is acquired. — O.O. Adekeye, JCA.

Also read:  Goldmark Nigeria Limited & Ors. v. Ibafon Company Limited & Ors. (2012) - SC

⦿ DOMICILE OF CHOICE
Domicile of Choice – A domicile established by physical presence within a State or territory coupled with the  intention to make it home. A person over the age of 21 other than a married woman or insane person may acquire a domicile of choice. In order to achieve this two conditions must be fulfilled- (1) Residence in the country; (2) There must be an intention to reside there permanently or at least indefinitely. — O.O. Adekeye, JCA.

⦿ BURDEN OF PROOF ON HE WHO ASSERTS THAT DOMICILE OF ORIGIN IS LOST
The burden of proving that a domicile has been chosen in substitution for the domicile of origin is on the person who asserts that the domicile of origin is lost – the intention must be proved with perfect clearness. Winans v. A.G. (1904) AC 287 at 290; Bhojwani v. Bhojwani (1995) 7 NWLR (Pt.407) 349. — O.O. Adekeye, JCA.

⦿ COST NOT AWARDED IN MATRIMONIAL MATTER
This being a matrimonial matter it is not in the interest of justice to award costs in this case, each party should bear his or her own costs. — M.O. Onalaja, JCA.

➥ LEAD JUDGEMENT DELIVERED BY:
Olufunlola Oyelola Adekeye, J.C.A.

➥ APPEARANCES
⦿ FOR THE APPELLANT
Mr. Okunloye Esq.

⦿ FOR THE RESPONDENT
Mr. Sherriff Esq.

➥ CASE FACT/HISTORY
The appellant and respondent were married under the Matrimonial Causes Act at the Marriage Registry of Ero Local Government in Ekiti State on the 22nd of March, 1986. The marriage was blessed with two children who are now living with the respondent. The appellant left Nigeria for the United States of America on the 4th of June, 1988 to work as a medical practitioner. He visited Nigeria in June, 1993 whereupon he promised to make necessary arrangements to facilitate the respondent and the children of the marriage to join him in the United States. The appellant had ever since not visited Nigeria. He makes financial provisions for the maintenance of the children of the marriage – which the respondent however considered as meagre compared with the expenses of bringing up the children by her.

The appellant filed his petition, marriage certificate, the verifying affidavit signed by the appellant personally, and the appellant’s counsel’s certificate of reconciliation – vide pages 1-9 of the records. The respondent filed an answer to the petition and a cross-petition – see pages 13-20 of the record of appeal. At the hearing of the petition, before the appellant called evidence, the appellant’s counsel moved the court by oral application, praying for an order of Decree nisi having regard to the counsel’s view that both parties had admitted in their pleadings that the parties have lived apart for more than three years, without calling any evidence. The respondent’s counsel however opposed the oral application on the ground that a Decree nisi is a declaration of right – the petitioner must prove his case with or without admission and that the issue of domicile of the appellant was being challenged without taking evidence – see pages 32-34 of the records of  appeal.

The appellant’s counsel in his reply to the respondent’s counsel’s submission on point of law urged the court to take the facts stated in the petition and the Marriage Certificate as satisfactory proof of the appellant’s domicile of origin – vide page 35 lines 34-35 of the records. In a considered ruling delivered by the learned Judge both the petition and the cross-petition were struck out. Subsequent to the ruling, the appellant filed an application before the lower court to set aside the order striking out the petition and cross-petition on the ground that the order was a nullity having been made without jurisdiction. This application to set aside the order was heard by another Judge – who also dismissed the application to set aside the former ruling on the ground that same amounts to sitting on appeal over the judgment of his learned brother. The appellant being dissatisfied with the two rulings filed his notice of appeal.

Also read:  Military Governor Of Lagos State & Ors v. Adebayo Adeyiga & Ors (2012)

➥ ISSUE(S) & RESOLUTION(S)
[APPEAL ]

I. Whether having regard to the settled position of the law – the trial court lacked jurisdiction to set aside the order of striking out made in this case which order was made without jurisdiction, notwithstanding the fact that the order was made by another Judge of the High Court?

RULING: IN APPELLANT’S FAVOUR.
A. THE SAME COURT CANNOT SET ASIDE ITS EARLIER DECISION
“The attitude of the court towards setting aside of judgment was illustrated in the case of Adigun v. Attorney-General, Oyo State (1987) 2 NWLR (Pt.56) 197, (1987) 1 All NLR (Pt.1) 238, that- Section 6(6) (a) of the 1979 Constitution which provides that judicial powers vested in the courts shall extend notwithstanding anything to the contrary in the Constitution to all inherent powers and sanctions of a court of law does not empower the court to review its own decision. If it were otherwise, there would be no finality about any judgment, of this courts and every affected litigant could bring further appeals, as it were, ad infinitum. That is a situation that must not be permitted. Generally speaking where a court has decided on an issue and there is in existence the judgment or order of a court of competent jurisdiction that decision is valid and subsisting. The same case cannot be litigated upon by the same court. It is never part of our administration of justice that a court shall sit on appeal over its own decision, whether or not the decision is right or wrong, simply because after making an order or giving a judgment or ruling a court becomes functus officio.  Asiyanbi v. Adeniji (1967) 1 All NLR 82; John Chukwuka & Ors. v. Ezulike (1986) 5 NWLR (Pt.45) 892; Oyeyipo v. Oyinloye (1987) 1 NWLR (Pt.50) 356; Cardoso v. Daniel (1986) 1 All NLR 25, (1986) 2 NWLR (Pt.20) 1; Onwuchekwa v. C.C.B. (Nig.) Ltd. (1999) 5 NWLR (Pt.603) 409.”
.
.
II. Whether the ruling delivered by the court on 11th December, 1998 striking out the appellant’s petition was not a nullity and therefore liable to be set aside?

RULING: IN APPELLANT’S FAVOUR.
A. COURT SHOULD GIVE PARTIES ALLOWANCE TO ADDRESS IT ON ISSUE RAISED BEFORE RULING
“It is however important that where a jurisdictional issue being so pivotal and fundamental is raised suo motu by the court the parties must be accorded the opportunity to react to the issue.  Galadima v. Tambai (2000) 11 NWLR (Pt.677) 1 SC; Adeigbe v. Kusimo (1965) 1 NMLR 284. Pages 33-35 of the records do not show that the respondent who raised the issue of domicile of the petitioner – was given adequate opportunity to react to this. This in my view amounts to the breach of fair hearing – or deprivation by the respondent to put her case properly before the court. Any decision based on this procedure is obviously a nullity.”
.
.
III. Whether the appellant is not domiciled in Nigeria at the time of filing his petition?

RULING: IN RESPONDENT’S FAVOUR.
A. APPELLANT IS DOMICILED IN NIGERIA
“The appellant from the facts revealed in both the petition and the answer was born in Nigeria – he schooled in Nigeria and married the respondent in Nigeria. They both cohabited in Nigeria before the appellant travelled to the United States to work as a medical practitioner to better his lot. The appellant visited home in 1993 and keeps in constant touch with his Nigerian roots. He is domiciled in Nigeria.”

“The petition for Decree of dissolution of marriage pg.3 paragraphs 1-4 show that the petitioner is domiciled in Nigeria – by virtue of his birth and domicile of origin. The fuel that he resides in America does not deprive him of his domicile of origin. The marriage certificate is on page 9 of the records. The fact that he has acquired a new domicile other than his domicile or origin being asserted by the respondent has to be proved by her. On page 14 paragraph 6 of the answer to petition -the respondent alleged that the petitioner left Nigeria in 1988, and has only visited the country once in 1993 when he stayed for only ten days. There was no evidence of facts to the effect that the petitioner had changed his domicile before the court in her answer during the proceedings of the 25th of November, 1998. There was no clear evidence of the petitioner’s intention to change his domicile of origin which he acquired by virtue of his birth, to a domicile of choice by permanently living over there in the United States of America before the court when he held that the petitioner could not ask for dissolution of marriage as he was not domiciled in Nigeria – and the court declined jurisdiction, as one of the conditions precedent to jurisdiction has not been fulfilled. The third issue is resolved in favour of the appellant.”
.
.
IV. Whether a case for granting a Decree nisi on the petition of the appellant has not been made out before the trial court?

Also read:  Augustine Ugbogbo v. The State (2016)

RULING:
A. THE COURT CANNOT MAKE COMMENT ON THIS UNTIL THIS MATTER IS RELISTED
“The section has the factor of absence of fault element characteristic of other matrimonial offences-the law behind the section that is 15(2)(1)as far as the living apart is concerned is not interested in right or wrong or guilt or innocence of the parties. Once the parties have lived apart, the court is bound to grant a Decree.  The pleadings pointed at living apart of the parties. The Court of Appeal cannot entertain this application as re-listing can only be implemented at the High Court where the petition was struck out – until the case is revived, and original jurisdiction is exercised at the High and appeal lodged against any steps taken in the proceedings this court has no judicial power to exercise. This court has no original jurisdiction to exercise in divorce matters. There is application to restore the petition on the cause list of the High Court. It amounts to jumping the gun or an abuse of court process to request this court to grant a Decree nisi at this stage. That application is refused. This appeal succeeds in part. Suit No. 1/271/98 is to be listed and assigned to another Judge of Oyo State High Court Ibadan Division for determination on merit. No order as to costs.”
.
.
.
✓ DECISION:
“”

➥ MISCELLANEOUS POINTS

➥ REFERENCED (LEGISLATION)
Section 2(2) of the Matrimonial Causes Act Cap. 220 Vol. XII of the Laws of the Federation, 1990 has this to say under jurisdiction in Matrimonial Causes that – Proceedings for a decree – (a) of dissolution of marriage; or (b) of nullity of a voidable marriage; or (c) of nullity of a void marriage; or (d) of judicial separation; or (e) of restitution of conjugal rights, or (f) of jactitation of marriage may be instituted under this Act only by a person domiciled in Nigeria. Section 2(3) of the Act provides that:- “For the avoidance of doubt it is hereby declared that a person domiciled in any State of the Federation is domiciled in Nigeria for the purposes of this Act and may institute proceeding under this Act in the High Court of any State whether or not he is domiciled in that particular State”.

Section 44(3) of the Matrimonial Causes Act stipulates that:- “The court shall not grant a decree of dissolution of marriage without receiving evidence by the petitioner in support of the petition”.

➥ REFERENCED (CASE)
⦿ JURISDICTION IN DIVORCE PETITION IS GOVERNED BY DOMICILE
It was held in Koku v. Koku (1999) 8 NWLR (Pt.616) 672 CA that:- “Jurisdiction of court to hear a divorce petition is governed by the domicile of the husband and not by the residence of the husband. And by operation of law, a married woman, on marriage, takes on the domicile of her husband. Consequently, the court with jurisdiction to adjudicate on a divorce matter is the court of the domicile of the husband Bhojwani v Bhojwani (1996) 6 NWLR (pt.457) 661”.

➥ REFERENCED (OTHERS)

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